Moore v. City of Lawrence, 54182

• Citation: 232 Kan. 353,654 P.2d 445
• Decision Date: 03 December 1982
• Docket Number: No. 54182,54182
• Parties: Allen L. MOORE, and Western Home Builders, Inc., a Kansas Corporation, Appellees, v. The CITY OF LAWRENCE, Kansas, A Municipal Corporation; Marci Francisco, Donald Binns, Barkley Clark, Thomas E. Gleason, Jr., and Nancy Shontz, Commissioners of the City of Lawrence, Appellants.
• Court: United States State Supreme Court of Kansas

Page 445

654 P.2d 445

232 Kan. 353

Allen L. MOORE, and Western Home Builders, Inc., a Kansas Corporation, Appellees, v. The CITY OF LAWRENCE, Kansas, A Municipal Corporation Marci Francisco, Donald Binns, Barkley Clark Thomas E. Gleason, Jr., and Nancy Shontz, Commissioners of the City of Lawrence, Appellants.

No. 54182.

Supreme Court of Kansas.

Dec. 3, 1982.

Syllabus by the Court

1. Under the provisions of Art. 12, § 5, of the Kansas Constitution, the home rule power of cities is favored and should be upheld unless there is a sound reason to deny it.

2. In determining whether a legislative enactment is uniformly applicable to all cities, such legislative intent should be clearly evident before a city's right to exercise home rule power in that area is denied.

3. The provisions of K.S.A. 12-701 et seq., are uniformly applicable to those cities which elect to adopt the procedure set forth therein.

4. A city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature has clearly preempted the field so as to preclude municipal action.

5. Under K.S.A. 12-705b, as it existed at the time of the trial court's decision, a subdivision plat filed with the register of deeds which has been approved by the planning commission constitutes an acceptance by the city of dedicated areas contained in the plat and precludes the city from passing an ordinance requiring a separate acceptance of dedications.

6. The historical background and changes made in a statute are to be considered by the court in determining the legislative intent, and any changes and additions made in existing legislation raise a presumption that a change in meaning and effect was intended.

7. It is presumed the legislature intends to change the law when it amends the provisions of a statute.

8. A statute will be construed to operate prospectively unless its language clearly indicates the legislature intended that it operate retrospectively.

9. The decision as to when a road or street is to be opened is within the discretion of the city's governing body.

Patrick E. Perry of Allen, Cooley & Allen, Lawrence, argued the cause, and Milton P. Allen, Lawrence of the same firm, was with him on the brief for the appellants.

Edward G. Collister, Jr., of Collister & Kampschroeder, Lawrence, argued the cause and was on the brief for the appellees.

SCHROEDER, Chief Justice:

This is an appeal by the City of Lawrence and individual city commissioners (defendants-appellants) from a declaratory judgment entered against them and in favor of Allen L. Moore and Western Home Builders, Inc. (plaintiffs-appellees). The district court found that Section 21-203(d) and (f) and Section 21-302.1 of the City Code of the City of Lawrence were in conflict with K.S.A. 12-705b and were therefore invalid, and that dedications of streets, utility easements and other rights-of-way indicated on appellees' subdivision plat were automatically accepted by the public when the plat was approved by the City Planning Commission and filed with the Douglas County Register of Deeds.

The facts are brief and undisputed. In the fall of 1980, plaintiffs submitted a proposed subdivision plat to the Lawrence-Douglas County Planning Commission for approval, as required by K.S.A. 12-705b. In addition to lot lines, the plat delineated proposed dedications of rights-of-way for streets, sidewalks and utility easements. The plat was found to be in conformity with the city's subdivision regulations and was approved by the planning commission on November 19, 1980.

The plat was then submitted to the city commission for acceptance of dedications of easements and public rights-of-way, as required by Sections 21-203 and 21-302.1 of the city ordinances. Consideration of the plat was deferred until March 10, 1981, at which time the commission voted not to accept the dedications of easements and rights-of-way until such time as a pending unrelated zoning issue could be resolved. The plaintiffs were notified of the commission's action by letter.

The proposed dedications were not subsequently considered by the commission. On September 11, 1981, the plat, endorsed by the chairman of the planning commission as required by K.S.A. 12-705b, was filed with the Douglas County Register of Deeds. At its meeting on September 29, 1981, the city commission reaffirmed that it had not accepted the dedications in plaintiffs' subdivision, and, concerned that prospective purchasers of the subdivision lots would be unaware of this, the commission directed that a "Statement of Non-Acceptance" be filed with the register of deeds. This action for declaratory relief was filed, seeking a declaration that the dedication of rights-of-way and easements were automatically accepted by the city upon filing of the plat with the register of deeds.

At the time of the district court's decision, 12-705b provided:

"[An owner of land] shall cause a plat to be made which shall accurately describe the subdivision, lots, tracts or parcels of land giving the location and dimensions thereof or the location and dimensions of all streets, alleys, parks or other properties intended to be dedicated to public use or for the use of purchasers or owners of lots.... All such plats shall be submitted to the city planning commission ... which shall determine if the same conforms to the provisions of the subdivision regulations.... If the plat conforms to the requirements of such regulations, there shall be endorsed thereon the fact that it has been submitted to and approved by the city planning commission or joint committee."

This statute was amended during the 1982 legislative session, which will be discussed in more length later in the opinion.

Section 21-203 of the city code provides that dedications of streets and other public easements must be accepted by the governing body of the city. That section reads in pertinent part:

"(d) A final plat that has been approved by the planning commission shall be submitted to the appropriate governing body for its acceptance of the dedication of streets and other public ways, service, and utility easements and any land dedicated for public use.... Failure of the governing body of the city or of the county to execute an acceptance of dedication shown on the plat shall be deemed to be a refusal of the proposed dedication.

....

"(f) Approval of a final plat by the planning commission and acceptance of dedication of easements and rights-of-way by the appropriate governing body shall be effective for no more than one (1) year unless all conditions of approval have been completed."

The ordinances further require that a final plat show an "[a]cceptance of dedication by the appropriate governing body." Section 21-302.1(i).

The district court found that Sections 21-203 and 21-302.1 of the Lawrence City Code, insofar as they pertain to acceptance of dedications, were in conflict with K.S.A. 12-705b, and were thus invalid as they were not charter ordinances under the home rule provisions of the Kansas Constitution, Art. 12, § 5. The district court stated:

"The addition to the City Ordinance of approval by the City Commission means in effect that the City Commission can overrule what the Planning Commission did, and I have trouble finding that amounts to enlargement. It seems to me it gives somebody else the final say in the case. The Planning Commission said 'yes' and the City Commission said 'no'. The result is that a plat otherwise having been approved is not approved, and I suspect that does in fact demonstrate that the City Ordinance is in conflict with the state statute."

In Claflin v. Walsh, 212 Kan. 1, 7, 509 P.2d 1130 (1973), the rules pertaining to home rule authority were discussed. Under the provisions of Art. 12, § 5, of the Kansas Constitution, the home rule power of cities is favored and should be upheld unless there is a sound reason to deny it. Home rule power is subject to control by the legislature through legislative enactments which apply uniformly to all cities. Kansas Constitution, Art. 12, § 5(b). Where a statute is uniformly applicable to all cities subsection (c)(1) of Art. 12, § 5 prohibits a city from electing, by way of charter ordinance, that the statute will not apply to it. For further discussion of the "uniform applicability" standard see Martin, Home Rule for Kansas Cities, 10 Kan.L.Rev. 501, 506-09 (1962). In Claflin the court stated that in determining whether a legislative enactment is applicable uniformly to all cities, such legislative intent should be clearly evident before a city's right to exercise home rule power in that area is denied. 212 Kan. at 7, 509 P.2d 1130.

The provisions of K.S.A. 12-701 et seq., pertain to city planning and subdivision regulations. The application of these statutes to any city is optional, in that 12-701 provides that any city may create a planning commission, while the remainder of the statutes govern the powers and duties of the planning commission and the method for adoption of subdivision regulations and approval of subdivision plats where a city has created a planning commission. For example, the planning commission is authorized to make a comprehensive plan for the development of the city (K.S.A. 12-704), and where a comprehensive plan has been adopted the commission may adopt regulations governing the subdivision of land. To become effective these regulations must first be approved by the governing body of the city. (K.S.A. 12-705.) K.S.A. 12-705b dictates the procedure to be used for approval of plats where a city has established a planning commission and adopted subdivision regulations.

It is clear that initially these statutes are not uniformly applicable to all cities as they provide an optional procedure which may be adopted by any city as a means of governing matters pertaining to city planning and subdivision regulations. However, after careful...